Friday, May 10, 2013

During Pennsylvania Supreme Court oral arguments in two lawsuits challenging mandatory judicial retirement, Justice J. Michael Eakin asked about another lawsuit currently pending in the Commonwealth Court and whether all three cases could be tossed because the high court, in Gondelman v. Commonwealth, has previously rejected a constitutional challenge to mandatory retirement.

J. Bart DeLone, a senior deputy attorney general who argued against overturning the retirement requirement in both the Supreme and Commonwealth courts, said in response to Eakin that Gondelman does control all three cases.

However, one of the attorneys for the judicial plaintiffs in the Commonwealth Court case said in an interview that their lawsuit differs from the two lawsuits taken up by the Supreme Court under its extraordinary jurisdiction.

Tom Groshens, of Sprague & Sprague, said in an interview that “our case includes claims by qualified voters who contend that mandatory retirement deprived them of the efficacy of their vote for [Commonwealth Court Senior] Judge [Rochelle S.] Friedman for a 10-year term because that 10-year term was cut short by three years.” The lawsuit also involves a challenge to the 2001 constitutional amendment that changed the mandatory retirement from the birthdays on which judges turn 70 to the end of the year in which judges turn 70.

Some judges get to serve longer than others just because of when their birthdays fall, which is “amplified discrimination,” Groshens said.

Further, the presiding judge in Commonwealth Court, Senior Judge James Gardner Colins, said that he was not sure Gondelman applies to all the theories in the Friedman suit – “indeed, the people elected the individual jurists to a 10-year term,” Groshens pointed out.

When asked for comment, a spokesman for the Attorney General’s Office referred The Legal to the government’s brief.

The presence of the three voters is beside the point, because they “are presenting the same claim that the Supreme Court rejected in Gondelman,” DeLone, Attorney General Kathleen G. Kane and John G. Knorr III, chief deputy attorney general, wrote in the Commonwealth Court brief.

While the plaintiffs claim the 2001 amendment “exacerbates the violation of Article I,” the state’s brief said. “But this, too, can make no difference: the holding in Gondelman is that in forming or altering their government, the people are not constrained by the provisions of Article I,” which spells out the fundamental rights Pennsylvanians have under the state constitution.